The Supreme Court’s Irresponsible Murkiness Over Whether the President Could Remove His Attorney General by Poisoning Him in the New Trump Immunity Case

Under the Supreme Court’s ruling in yesterday’s Trump v. United States case, does an official act clearly within the power of the president to undertake become an “unofficial act” not subject to immunity if the President uses what would be otherwise illegal means to carry it out? As Justice Jackson wrote in her dissent: “While the President may have the authority to decide to remove the Attorney General, for example, the question here is whether the President has the option to remove the Attorney General by, say, poisoning him to death.” Id. at n.5 (Jackson, J. dissenting). Surprisingly, the Court does not directly answer this question. Nor does the majority respond to this part of Justice Sotomayor’s dissent: “The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

The majority inexplicably does not respond to these points directly, leaving a huge hole in our understanding and a pathway to presidential abuse. The majority divided potential immunity claims into three buckets. For what the Court considered “core” presidential functions, including speaking with officials at the United States Department of Justice, absolute immunity is appropriate. For cases involving the use of presidential power up to the “outer perimeter” of presidential power, there is a presumption of absolute immunity. Under this presumption, “the President must . . . be immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no dangers of intrusion on the authority and functions of the Executive Branch.” There is no immunity for unofficial acts.

The Court was not clear on whether using what would appear to be illegal means to commit an act that is clearly within the power of the President could count as unofficial and be prosecuted. It was only clear that in prosecuting an unofficial act, one could not rely on proof through official acts. It seems to me that a prohibition on using murder to remove a government official from office and criminal prosecution for that action would “pose no dangers of intrusion on the authority and functions of the executive branch.” But the Court should have been clear on this. And it would be odd to call that an “unofficial act.” Better to say it’s an official act committed by otherwise unlawful means that gets no immunity. That principle would cover the poisoning, Seal Team Six, and bribe for pardon cases.

This lack of clarity seems irresponsible and dangerous.

UPDATE: Some point me to footnote 3 of the majority’s opinion, which at least implicitly suggests (without saying how this could work) that the President could be prosecuted in a pardons for bribery scheme:

Justice BARRETT disagrees, arguing that in a bribery prosecution, for instance, excluding “any mention” of the official act associated with the bribe “would hamstring the prosecution.” Post, at –––– (opinion concurring in part); cf. post, at –––– – –––– (opinion of SOTOMAYOR, J.). But of course the prosecutor may point to the public record to show the fact that the President performed the official act. And the prosecutor may admit evidence of what the President allegedly demanded, received, accepted, or agreed to receive or accept in return for being influenced in the performance of the act. See 18 U.S.C. § 201(b)(2). What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President’s motivations for his official actions and to second-guess their propriety. As we have explained, such inspection would be “highly intrusive” and would “ ‘seriously cripple’ ” the President’s exercise of his official duties. Fitzgerald, 457 U.S., at 745, 756, 102 S.Ct. 2690 (quoting Spalding v. Vilas, 161 U.S. 483, 498, 16 S.Ct. 631, 40 L.Ed. 780 (1896)); see supra, at ––––. And such second-guessing would “threaten the independence or effectiveness of the Executive.” Trump v. Vance, 591 U.S. 786, 805, 140 S.Ct. 2412, 207 L.Ed.2d 907 (2020)

It’s a pretty thin reed to make the argument when the Court in stating its rules does not explicitly say that of course the President cannot poison his attorney general to remove him from office.

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